THE FUTURE OF ENVIRONMENTAL LAW AND GOVERNANCE
Dr. Antonio G.M. La Viña
Holder, 2008 Metrobank Foundation Professorial Chair in Environmental law
Member, Constitutional Law Department, Philippine Judicial Academy
Dean, Ateneo School of Government
Lecturer on Constitutional Law and Local Government, U.P. College of Law
Lecturer on International Environmental Litigation, Ateneo School of Law
5th Metrobank Foundation Professorial Chair Lecture
October 3, 2008, Malcolm Theatre, U.P. College of Law
Chief Justice Reynato S. Puno, Justice Ameurfina Melencio-Herrera, Chancellor of the
Philippine Judicial Academy, Justice Consuelo Ynares-Santiago, Honorable Justices of the
Supreme Court and the Court of Appeals, Metrobank Foundation President Aniceto Sobrepena
and his colleagues from the Foundation, Honorable Judges, Dean Marvic Leonen, Professor
Gwen de Vera, and my colleagues in both U.P. and Ateneo, fellow lawyers, co-workers in the
environmental movement, students, my wife and my sons, Friends, Ladies and Gentlemen, Good
afternoon.
It is with mixed feelings that I come before you today to deliver this 5th Metrobank
Foundation Professorial Chair Lecture of the Philippine Judicial Academy. I must admit that I
panicked when I first read the invitation from Justice Melencio-Herrera to do this lecture. I knew
that I would be speaking before a formidable audience, with no less the Chief Justice of our
country present. It is not just the fact that he presides over the judicial and legal profession that
intimidates me; as a student of Chief Justice’s Puno’s jurisprudence, I have always admired the
rigor, scholarship, and imagination that has characterized his opinions. For my words to be
scrutinized by such an intellect, as well as by the brilliant minds of his colleagues in the Court
and in the Judiciary, and by my own colleagues in the legal profession, governance field and the
environmental movement, is indeed a scary proposition. Having such a distinguished panel is
also daunting although I am comforted that with all of them I have personal ties – my good
friend, Tony Oposa, the path breaking environmental lawyer, certainly the most famous and
celebrated among us; Prof. Ron Gutierrez of Ateneo Law School and Executive Director of
ULAN (Upholding Life and Nature); and Ms. Alelu De Jesus who is the current Chairperson of
the U.P. Paralegal Volunteers Organization of which I was a member 20 years ago. The panel
represents a generation of present and prospective environmental lawyers who will have to
respond to the challenges of tomorrow.
Unfortunately or perhaps fortunately for me, saying no to Justice Melencio-Herrera is not
an option. Like many of you here today, I always say yes when Justice Herrera asks me to do
something. Nearly twenty years ago, when I was doing my doctorate in Yale, Justice Melencio-
Herrera, as Chairman of the Malcolm Trust Funds approved a generous grant that enabled me
and my family to stay longer in New Haven so I could finish my dissertation on climate change.
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But more than this personal debt, I always say yes to Justice Melencio-Herrera because whatever
it is she asks us to do, whether it is a training to be conducted, a research to be completed, or a
lecture to be delivered, Justice Herrera is asking us to do it for the good of the country. And how
can any one refuse that?
Together then with a little fear and trembling, I am also full of gratitude for the chance to
speak to you this afternoon. First, I am thankful that so many of you are here today. As a coping
strategy for my nervousness, I have invited my family, my students in both U.P. and Ateneo, at
least 3 generations of environmental lawyers and scientists that I worked with or I mentored to
come here today. In many ways, my professional success is an outcome of the solidarity that we
shared.1 More importantly, I am grateful to Justice Melencio-Herrera, the Philippine Judicial
Academy and the Metrobank Foundation for an opportunity to think through the present and
future challenges we face in the area of environmental law and governance and to share these
thoughts with all of you.
I feel very strongly and passionately about the need to confront these challenges and so,
conquering my insecurities, I will now begin my lecture: “The Future of Environmental Law and
Governance”
The choice of the title of the lecture is not accidental. My objective this afternoon is
straightforward: to identify the challenges posed by environmental issues to the Philippines in
the next 25 years and to propose practical approaches, using legal and governance tools, to
address them. But why focus on the future? We have enough environmental problems today that
we cannot even solve properly. But that is precisely the point. The reason why our problems are
always outrunning and overwhelming solutions and efforts is that we are always placing catch up
and clean up. Even if we pour resources into dealing with them, make our laws stricter, and
mobilize more people, environmental problems continue to increase exponentially
To illustrate, let me share with you what is happening to our forests and in particular in
the Sierra Madre where one of the very few remaining tropical rainforests of the Philippines
remain.
You are familiar with the facts. In less than a century, we have lost 90% of our forests,
and probably thousands of unique species of life along with it that the world will never know. At
the height of commercial logging in the 60s and 70s, our natural resources seemed inexhaustible.
But by the 1980s and early 1990s, we knew we were in trouble. In the ground breaking case of
Oposa v. Factoran, the Supreme Court took notice of this and liberalized standing in
environmental cases. In that case, one of the most cited environmental cases worldwide by both
legal scholars and judicial authorities, former Chief Justice Davide eloquently justified why
Article II, Section 16 of the 1987 Constitution was self-executory:
1 For this particular lecture, I am especially grateful to three colleagues: Atty. Vice Yu who is based with the South center in Geneva with whom
I have worked with on globalization issues and Attys. James Kho and Jose Florante Pamfilo who, in recent years, are my closest collaborators
in environmental governance. I am also grateful to my colleagues in Manila Observatory who has been my co-worker in the field of climate
change.
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“While the right to a balanced and healthful ecology is to be found under the Declaration
of Principles and State Policies and not under the Bill of Rights, it does not follow that it
is less important than any of the civil and political rights enumerated in the latter. Such a
right belongs to a different category of rights altogether for it concerns nothing less than
self-preservation and self-perpetuation aptly and fittingly stressed by the petitioners the
advancement of which may even be said to predate all governments and constitutions. As
a matter of fact, these basic rights need not even be written in the Constitution for they
are assumed to exist from the inception of humankind. If they are now explicitly
mentioned in the fundamental charter, it is because of the well-founded fear of its framers
that unless the rights to a balanced and healthful ecology and to health are mandated as
state policies by the Constitution itself, thereby highlighting their continuing importance
and imposing upon the state a solemn obligation to preserve the first and protect and
advance the second, the day would not be too far when all else would be lost not only for
the present generation, but also for those to come - generations which stand to inherit
nothing but parched earth incapable of sustaining life. The right to a balanced and
healthful ecology carries with it the correlative duty to refrain from impairing the
environment.2
Justice Florentino Feliciano, while raising questions abut the doctrines laid down by the
Court in that case, was more concise but no less eloquent, in explaining his vote to grant the
Petition: because, according to Justice Feliciano, “the protection of the environment, including
the forest cover of our territory, is of extreme importance of to the country.”3
The Oposa case was a good case for the environment but did it accomplish what it was
supposed to do – prevent deforestation? 15 years has passed since that decision, the minor Oposa
is now a first year law student in the UP College of Law and was my student as an undergraduate
in Ateneo de Manila, and, since the case was decided in 1994, the Philippines has lost more of
our forests. Although only a few Timber License Agreements are left, with the last to expire by
2009, the systematic assault on our forests is still happening today, with the Sierra Madre a
center of action, with most of that logging activity now illegal but no less destructive. The excuse
for the illegal logging is that it benefits poor people, giving them livelihoods that they otherwise
do not have.
Trees or people? This is how the deforestation issue is often framed but is this in fact the
right framing? Certainly, logging interests have used this argument through the years, using the
poverty of our people as an excuse for rent-seeking behavior. In fact, there is no evidence that
the share of the poor, especially the workers and the communities that live in these forests, in the
wealth produced by our forests have been significant. There is no evidence as well that the share
of local governments and the national government in this wealth has been substantial compared
to the total wealth created. What is sad, as I will elaborate in awhile, is that we are repeating the
same pattern in the use of our mineral resources
New ways are difficult at the beginning. As the Bible says, you cannot put new wine into
old wineskins or else the wineskins break, the wine is spilled, and the wineskins are ruined. That
2 Oposa et al. v. Factoran, et al. G.R. No. 101083 (1993)
3 Ibid.
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is what we have been trying to do about logging and deforestation and reforestation and as long
as we continue to do that, the results will be the same. We need to think ahead of the problem,
think forward, and think tomorrow to find the right solution.
I am not saying that we are hopeless against present problems or that we should just
ignore them. But I think you would agree with me that it would also make sense to think forward
to the future, understand well what we have to face and plan ahead so that finally our solution
will outrun the problem. This lecture is however not about predicting what tomorrow could
bring; after all I am a lawyer, and not a prophet. Instead of analyzing in the abstract what the
future could bring, I will proceed by dealing with concrete issues we already face today,
challenges that will escalate and become even larger in the next two decades.
For today’s lecture, I propose to tackle three different and difficult future challenges:
How we should address the negative environmental and social impacts of
economic globalization brought about by the liberalization of trade and
investment;
(2) What we should do to confront climate change, the most serous global
environmental problem which will definitely impact the Philippines in a big way;
and finally,
(3) What we need to put into place to make sure that we are really able to
implement environmental laws and policies, including judgments ordered by our
courts.
I will describe the challenge as we face it today and how I think each challenge will
evolve through time. I will also describe how we are currently addressing each of these issues
and conclude that our present approaches are inadequate. I will then propose legal and policy
solutions that we might want to explore so the future would see an operational code of
environmental law and governance that is truly effective.
MANAGING THE IMPACTS OF GLOBALIZATION
The world today is marked by the increasing economic interdependence of peoples and
nations due to ever-greater flows of goods, services, and information. In recent years the World
Trade Organization (WTO), of which the Philippines became a founding member on December
14, 1994, has contributed to these flows by overseeing and administering international rules
designed to progressively lower trade barriers. 4
Each WTO Member, including the Philippines, is required to "ensure the conformity of
its laws, regulations and administrative procedures with its obligations" under the various WTO
agreements. Since 1994, various administrations had cited the Philippines’ planned WTO
accession and its engagement in globalization, among other rationales, as justification for
4 See Antonio La Viña and Vicente Paolo Yu, CBNRM and the Future: The Impact and Challenge of Global Change on Philippine Natural
Resources Policy, Paper presented at the Ninth Biennial Conference of the International Association for the Study of Common Property (IASCP),
Victoria Falls, Zimbabwe, 17-21 June 2002, Online at http://www.cbnrm.net/pdf/lavina_a_001_philippinescbnrm.pdf
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economy- and natural resource management-related legislative policy changes, including
attempts to amend the 1987 Philippine Constitution, and these efforts continue to this day. A
large number of laws have since been enacted to directly or indirectly implement WTO treaty
obligations in virtually all sectors of the Philippine economy. Among others, the country’s
mining and forest laws have been changed, or their regulations revised, to promote natural
resource exports.5
The Challenge of Mining
The push to favor resource extraction and export is evident in the enactment of Republic
Act No. 7942, also known as the Philippine Mining Act of 1995. The Act sought to promote
economic growth by making the Philippines a major source of mineral commodities and inviting
the participation of foreign investors. It set up a regulatory and institutional framework for the
entry and operation of large-scale commercial mining enterprises, and it increased the financial
incentives for investment. It gave investors virtually exclusive and monopolistic rights over the
mineral and other natural resources located within the mining area. And, in effect, it directed that
priority should be given to mining corporations and other private interests, rather than to resident
local communities, when granting rights to mineral extraction, land tenure, and site access,
because only such interests have the technical and financial resources that are required to receive
priority under the law.6
Immediately after the law’s enactment, more than 100 foreign and local mining firms,
including the major global corporations, applied for mining exploration and development rights
in the Philippines. After the Marcopper mine tailing incidents in Marinduque and because of the
legal uncertainty around the constitutionality of the Mining Act, there was a hiatus in mining
investments. But in recent years, because of the rise in mineral prices and because of the 2004
decision of the Supreme Court in La Bugal vs. Ramos7 which ruled that the Mining Act was
constitutional, mining investments and activity are again in an upswing. Of interest in particular,
not just in the Philippines but worldwide, is the aggressive entry of Chinese companies in the
mining industry, a result of the raw material needs demanded by the unprecedented economic
growth of China.
The impact of mining is overwhelming, pervasive and wide-ranging. The industry cuts
across practically all facets of the nation’s life (political, economic, social and environmental).8
Its importance cannot be overlooked. With the Philippine government’s aggressive promotion of
mining as a driver for economic growth, however, came a huge divide between stakeholders who
hold divergent views with respect to mining. On one side, there are those who believe strongly
and sincerely that mining is good for the country because of the economic benefits that it brings.
Those in this group also believe that, with proper regulation and putting into place the right
incentives, sustainable mining is possible. On the other side of this divide are those who are
completely against large scale commercial mining as an economic activity. They see mining as
an inherently destructive activity and point to the bad environmental legacy of the mining
5 Ibid.
6 Ibid.
7 G.R. No. 127882, La Bugal B'laan Tribal Association, et al. vs. Ramos, et al. (2004).
8 M. Miranda, A. La Vina, et. al., Mining and Critical Ecosystems: Mapping the Risks, World Resources Institute, Washington DC (2003)
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industry, including recent mines such as the La Fayette mine in Rapu-Rapu island in Bicol, as
proof that “sustainable mining” is in fact a contradiction in terms.
My own view is in the middle of these two opposites. I think that for a highly mineralized
country like the Philippines, it would be a mistake not to consider and pursue the development of
our mineral resources. During the 1980s, the Philippines ranked among the top 10 producers of
gold, copper, nickel, and chromites.9 In 2000, the Philippines ranked second only to Indonesia in
terms of prospective minerals and resources.10 But we should also bear in mind that together with
being highly mineralized, our country has four characteristics that make mining challenging:
Our population density is one of the highest in the world; with nearly a hundred million
people fighting for just 30 million hectares of land; and when you factor in what is
inhabitable, in 2003, our population density was approximately 270 people per square
kilometer.11 This means mining will have to compete with other equally or more
important land uses – forestry, agriculture, settlements, to name a few.
We are a mega-biodiversity rich country, one of the top 20 in the world. The patchwork
of isolated islands, the tropical location of the country, and the once extensive areas of
rainforest have resulted in high species diversity in some groups of organisms and a very
high level of endemism. The Philippines has among the highest rates of discovery in the
world with sixteen new species of mammals discovered in the last ten years. At the very
least, one-third of the more than 9,250 vascular plant species native to the Philippines are
endemic.12 And recently, the Verde Island Passage south of Manila has been described as
the "centre of the centre" of the world's marine biodiversity.
The Philippines is faced with many environmental challenges. While biodiversity rich,
we are known as one of the biodiversity hotspots where biological diversity is under
constant threat due to unsustainable resource use practices, overexploitation, population
pressure, poverty and other factors.
Finally, mining in the Philippines will have to be done in the context of poverty and
social conflict. High poverty rates, especially in rural areas, are a major human
development challenge in the Philippines. In 2000, approximately 45 percent of the
population was living on less than US$2 per day and the rural poverty rate was estimated
9 Environmental Science for Social Change (ESSC). Mining Revisited: Can an Understanding of Perspectives Help? Quezon City, Philippines
(1999).
10 Kuo et al. 2000. “The Mineral Industries of Asia and the Pacific.” Minerals Yearbook: 2000. Washington, DC: United States Geological
Survey (USGS).
11 Miranda, et. al, supra note 9.
12 Miranda, M. et al. All That Glitters is Not Gold: Balancing Conservation and Development in Venezuela’s Frontier Forests. Washington, DC:
World Resources Institute (1998)
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at 37 percent.13 Our experience of uneven creation and distribution of wealth and power
has lead to social upheaval and, in some cases as in Mindanao, in violent conflict.14
In sum, the re-emergence of mining as a major industry favored by global economic
integration is accompanied by serious environmental and social challenges to the Philippines.
How should we respond? What strategies can we employ? How can environmental law help?
Community-Based Natural Resource Management
This is where the truism that the key to the future is in the past in fact holds. In my view,
the response to the challenge of economic globalization lies in a tested approach of the past that
we must evolve and adapt to meet the new issues of the future. This approach is Community-
Based Natural Resource Management (CBNRM) which emphasizes the fundamental role of
local communities in determining their own fate and allows them to become effective and
empowered economic and political actors.15 A genuine and effective implementation of CBNRM
can bring social and economic assistance to sectors likely to be adversely affected by global
economic integration. CBNRM enables local and indigenous communities to respond to this
change in ways that maximize their long-term economic benefits while minimizing potential
losses. In effect, CBNRM can be an effective economic and social safety net.16
An effective CBNRM policy recognizes that local community ownership and control of
the resource base is key for ensuring economic equity and environmental sustainability. 17
Empirical evidence from many countries shows that communities are often skeptical of
government programs if they provide only limited tenure over local natural resources. CBNRM
incorporates community norms for access and use of local resources, doing so in ways that
conserve the resources rather than maximizing their extraction. These community norms had
typically evolved through long-term relationships between the communities and the natural
resources upon which they depended. Consequently, community members tend to consider
community-based resource rights more legitimate than externally-imposed State-granted
measures such as Torrens land titles, logging permits, and mineral concessions and agreements.
Hence, the determination and enforcement of rights, including resolution of disputes over them,
should be communal matters rather than the responsibility of State agencies.
The Philippines should employ the following CBNRM principles in addressing the
challenges posed by globalization, as in the case of mining18:
13 World Bank, Philippines Poverty Assessment, Volume 1: Main Report. Washington, DC: Poverty Reduction and Economic Management
Unit, East Asia and Pacific Region (2001)
14 See J. Pamfilo, A. La Viña, et. al, Mapping Out Conflicts in Mining Areas: Drawing Lessons and Seeking Spaces for Building Principled
Consensus Towards Effective Mining Governance (2008).
15 See La Viña and Yu, supra note 5.
16 Ibid.
17 For a discussion of the basic concepts, see World Resources Institute, World Resources 2005: The Wealth of the Poor, Managing Ecosystems
to Fight Poverty, Washington DC (2005); See also Owen J. Lynch and Kirk Talbott, Balancing Acts: Community-based Forest Management
and National Law in Asia and the Pacific, pp. 23-29, 109-136, Washington DC (1995).
18 See La Viña and Yu, supra note 5, for a full discussion of these principles.
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Transparency and information access – CBNRM calls for full community access to
information about policies and regulations, and full transparency in their generation.
Community consent– CBNRM advocates the principle of “free and prior informed
consent,” which is now enshrined in the Indigenous Peoples Rights Act of 1997.
State power devolution – CBNRM advocates giving local communities a primary role
as natural resource managers, considering them capable of making good economic
decisions regarding these resources.
Economic equity and environmental sustainability – CBNRM promotes equity and
sustainability in ways that enable local communities to integrate themselves into the
global market economy on their own terms.
International and Domestic Legal Implications of CBNRM
Although the WTO system of global trade militates against overly trade-restrictive
policy, to some degree it recognizes that countries must develop policies consistent with their
environmental needs. This recognition provides a degree of leeway for employing CBNRM as a
means of protecting local and indigenous communities from the pressures of globalization,
effectively channeling those pressures toward the economic sectors that can best adapt. Such
deviations from the WTO general principles are supported by various provisions of GATT 1994,
particularly Articles XX(b) and (g), which allow countries to adopt or enforce measures which,
though inconsistent with normal trade obligations, are “necessary to protect human, animal or
plant life or health” or which relate “to the conservation of exhaustible natural resources. The
only limitation to these measures is that they must not be applied “in a manner which would
constitute a means of arbitrary or unjustifiable discrimination between countries where the same
conditions prevail, or a disguised restriction on international trade.” In other words, as long as its
principles are employed for legitimate purposes, rather than as a method of unfairly restricting
trade, the use of CBNRM for the conservation of biodiversity and cultural diversity may be
justified under GATT Article XX, at least to a limited extent.
Other annexes to the WTO Agreement similarly provide limited opportunities to impose
trade-restrictive or trade-discriminatory measures for non-trade considerations. These include
sanitary and phytosanitary measures (such as public and environmental health and safety), the
provision of public and private CBNRM-related services (for example, through community
organizing, environmental and natural resources protection and management, and product
marketing and management), and investment restrictions in CBNRM priority areas (including
investments in mining and forestry).
It should be interesting to note that it appears now that the original fear that the WTO
dispute system might not be sympathetic to environmental concerns was misplaced. Decisions
from the Appellate Body of the WTO have shown ample sensitivity to environmental concerns.19
It is interesting to note that in the environmental jurisprudence of the WTO Appellate Body, one
19 See WTO Shrimp-Turtles, 1998, WTO Beef Hormones, 1998; WTO Japan Varietals, 1999; WTO GMOs, 2006.
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can clearly the thinking of our very own Justice Feliciano who has become a hero to many
environmental lawyers and activists who have followed the evolution of this jurisprudence.
Philippine constitutional law provides even stronger safeguards. The 1987 Philippine
Constitution, especially Articles II, XII, XIII, and XIV, calls for a “Filipino First” trade and
economic policy. The Philippine Supreme Court upheld these principles in the Manila Prince
Hotel and WTO ratification cases, indicating that the State should provide safeguards for
disadvantaged sectors, thereby enabling Filipinos to compete effectively in globally
interdependent markets. Only if implemented with such safeguards can the WTO Agreements be
consistent with the Philippine Constitution.
“Filipino First” principles have also been expressed in economic legislation such as Rep.
Act No. 7844, the Export Development Act of 1994; Rep. Act No. 7900, the High-Value Crops
Development Act of 1995; and Rep. Act No. 8800, the Safeguard Measures Act of 2000. These
acts effectively aim to promote Filipino competitiveness in the global economy while providing
safeguards and other measures that would boost domestic productive capacity and the ability to
minimize and adjust to external market shocks. The expressed legislative intent of these laws can
best be implemented through the adoption and implementation of a broad-based, cross-sectoral
CBNRM policy.
CBNRM need not be restricted to mining. It can certainly be applied to forestry and other
natural resources. Indeed, in 1995, through Executive Order No. 263 (1995), the national
government adopted community-based forest management as the national strategy for managing
the country’s forest resources. Republic Act No. 8425, the Social Reform and Poverty
Alleviation Act of 1998, provides a statutory basis for broadening CBNRM to non-forest
resource sectors. The Act stipulates that the government’s social reform agenda must “address
the existing inequities in the ownership, distribution, management and control over natural
resources and man-made resources from which [people] earn a living or increase the fruits of
their labor. Finally, the Indigenous Peoples Rights Act of 1997 (IPRA), Republic Act No. 8371
(IPRA) can provide a statutory basis for the initial application of CBNRM policies to ancestral
domains.
Pro-CBNRM laws and policies will be useless unless they are implemented, and
implementation is not solely the domain of State actors. It rests also on the communities’ ability
to assert their rights against competing interests. Effective assertion depends in turn on the
existence of a strong, organized, and empowered community. Global economic, environmental,
and technological change certainly presents serious threats to empowerment, but it can also
provide impetus for community organization and self-assertion. The consistent and effective
implementation of CBNRM can provide the essential social safety nets and safeguards, enabling
a more effective and ultimately more productive response to the pressures arising from global
economic integration.
Should La Bugal be revisited?
Let me end this segment of my lecture by asking the provocative question on whether it is
time to revisit the La Bugal doctrine. By the way, before I present my views on this case, let me
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make a disclosure. The “Ramos” in this case used to be my boss in the DENR where I was
Undersecretary for Legal Affairs. In fact, it was my legal team, and under my direction, that
worked with the Mines and Geo-Sciences Bureau to draft the implementing rules and regulations
for the Mining Act, including the rules on the FTAAs and the fiscal regime that would govern
these agreements. Because of my position, I ordinarily would have taken the lead for the
department to work with the Solicitor General in defending the Financial and Technical
Assistance Agreements being assailed by the La Bugal petition. But let me make a second
disclosure: before I joined the DENR I 1996, I was a co-founder, with Dean Marvic Leonen and
other colleagues, of the Legal Rights and Natural Resources Center (LRC), one of the petitioners
in the case. And before I joined the DENR, I was research director of LRC. Following my own
understanding of the rules on conflict of interest, I voluntarily inhibited myself from handling the
case and passed it on to my best mining lawyer, Atty. Cecile Dalupan.
For the reasons above and in the context of this forum, I do not think that it is appropriate
for me to criticize La Bugal or to second guess the Court on its reasoning when it upheld the
constitutional validity of the Mining Act of 1995, in particular the provisions allowing the
President to enter into FTAAs. However what I think we should all asked, both academically and
legally, in appropriate cases that hopefully would be filed before the Court in the future, is
whether or nor the rationale articulated by Chief Justice Artemio Panganiban in La Bugal can in
fact be empirically validated. Let me quote from the concluding portion of the esteemed Chief
Justice’s opinion:
Whether we consider the near term or take the longer view, we cannot overemphasize the
need for an appropriate balancing of interests and needs -- the need to develop our
stagnating mining industry and extract what NEDA Secretary Romulo Neri estimates is
some US$840 billion (approx. PhP47.04 trillion) worth of mineral wealth lying hidden in
the ground, in order to jumpstart our floundering economy on the one hand, and on the
other, the need to enhance our nationalistic aspirations, protect our indigenous
communities, and prevent irreversible ecological damage.
This Court cannot but be mindful that any decision rendered in this case will ultimately
impact not only the cultural communities which lodged the instant Petition, and not only
the larger community of the Filipino people now struggling to survive amidst a
fiscal/budgetary deficit, ever increasing prices of fuel, food, and essential commodities
and services, the shrinking value of the local currency, and a government hamstrung in
its delivery of basic services by a severe lack of resources, but also countless future
generations of Filipinos.
For this latter group of Filipinos yet to be born, their eventual access to education,
health care and basic services, their overall level of well-being, the very shape of their
lives are even now being determined and affected partly by the policies and directions
being adopted and implemented by government today. And in part by the Resolution
rendered by this Court today.
Verily, the mineral wealth and natural resources of this country are meant to benefit not
merely a select group of people living in the areas locally affected by mining activities,
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but the entire Filipino nation, present and future, to whom the mineral wealth really
belong.
I agree with all of these declarations but I will, as an academic, raise two fundamental
questions:
Does the Mining Act as currently implemented, with the fiscal regime that has now
further evolved and looking at actual existing mining activities (including the
environmental impacts of the first new mine under the Mining Act of 1995, La Fayette in
Rapu-Rapu island) and the new contracts being entered into, in fact appropriately
balance the interests and needs between development and environment, between industry
and communities, and between the present and the future?
Is the country – and by that I mean the national government, the local governments, and
the communities directly affected by mining – really benefiting from the mining
operations already going on? Where is the revenue actually going and ultimately how is
it being used?
In raising these questions, I am mindful that generally the Judiciary accord the political
branches of government wide respect in the appreciation of facts and broad discretion in
policy. However, as I will elaborate in the last part of this lecture, the future of environmental
law and governance will challenge the courts to be more proactive and engaged in
monitoring the execution of their decisions because otherwise, as the case of the original
Oposa vs. Factoran case illustrate, courts could realize that their brave and eloquent
decisions have not, in the end, made a difference for our environment and for our people.
Indeed for an international environmental lawyer like me, a frequent embarrassing moment
whenever I am abroad is when fellow lawyers and legal scholars find out that I am a Filipino.
Immediately, they would ask me about the Oposa case and they would praise our Supreme
Court. And then they would say – “your forests and environment must be in great shape”. It
is humbling being asked such a question again and again.
RESPONDING TO CLIMATE CHANGE
Climate change represents the most serious, most pervasive environmental threat that the
world faces. In climate change, we find a convergence of humanity’s improvident past, its
difficult present, and its uncertain future brewing into one of the world’s biggest challenges: a
“perfect storm.”20 The issues are not merely scientific; climate change spans political, social, and
economic dimensions, crosses national boundaries, and will reach beyond the present generation.
It will aggravate the complex problems of development that we struggle with today like poverty,
food security, and water availability that threaten to ignite large-scale political and social
upheavals.
20 This section is based and borrows text from a lecture delivered by the author in collaboration with colleagues from the Manila Observatory.
See Jose Ramon T. Villarin, Ma. Antonia Y. Loyzaga, Antonio G.M. La Viña, et. Al., In the eye of the Perfect Storm: What the Philippines
should do about Climate Change, SC Johnson Lecture on Environmental leadership, Ateneo de Manila University (2008).
12
12
The Philippines will not be spared from climate change. These are the impacts that are
predicted for us21:
Weather: climate change will influence Philippine weather in terms of changes in
temperature, rainfall, and tropical cyclone activity. This, in turn, will cause impacts in
various sectors including agriculture, forestry, and water resources.
Sea level rise: Another impact is the accelerated rise in sea level. As the oceans expand
due to warming, and as mountain glaciers and polar ice melt and drain into the oceans,
some islands and many coastal areas are in danger of being inundated with the rising
waters. Sea-level rise due to thermal expansion is a threat to this country, given its
archipelagic nature and long stretches of coastline. Rising sea levels may contaminate
groundwater sources and expose communities to harsh storm surges. Sea-level rise will
increase the risk of flooding and storm damage.
Agriculture: Various sectors in the Philippines will be affected by the changes in
climate. In agriculture, the country is expected to experience dry days that are drier and
wet days that are wetter, which may result in poorer crop production, storage, and
distribution since changes in the timing and volume of rain are critical. In addition, a
CO2 rise favors crops, but weeds are more likely to proliferate simultaneously, thereby
necessitating the development of new crop varieties or herbicides.
Forests: Moist forests will shrink and turn to dry forests (Lasco et. al, 2007).
Biodiversity loss will be aggravated since global warming will raise the risk of floods,
worsening degradation and species loss. Marine resources will be affected as well, since
warmer waters induce coral bleaching which eventually leads to declining fish
populations.
Energy: Roughly 20% of total power supply in the Philippines comes from hydro-
electric sources. Changes in the patterns, volume and geographic distribution of rainfall
threaten to increase and perpetuate intensified reliance on imported coal and oil. As
discussed earlier, rainfall is increasing in rainfall over the Visayas and decreasing in
Luzon and Mindanao. This trend points to implications on the hydropower generation of
the country, since the country’s major dams are located in Luzon and Mindanao.
Health: There are also health implications due to a warmer wetter environment.
Prolonged periods of high temperature and water impounding due to sudden heavy
downpours serve as ideal breeding conditions for disease vectors such as Aedes and
Anopheles mosquito for dengue fever and malaria.
Floods and Water: Severe flooding on the extreme can totally re-write the contours of
the land. Water shortages due to drought, salt-water intrusion, or floods will influence
decision-making on investments in engineering and infrastructure.
21 Ibid.
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Conflict: Political conflicts and civil unrest may intensify due to the impact of food and
water constraints on areas already experiencing socio-economic pressures due to a
historical clash of cultures.
Displacement: climate-related disasters, coupled with geo-physical hazard-related
disasters (such as landslides or rain-induced lahar flows), increase the risk to vulnerable
populations. Thus, more displacement will result in the necessary relocation of
communities and rehabilitation of the affected areas (Manila Observatory, 2007).
The Global Response to Climate Change
Climate change, as a global problem, presents a challenge that is characterized by the
irrelevance of national boundaries both in terms of its causes and the required
solutions. It requires the definitive manifestation of the interdependence of nations and the
adoption of a global framework. Negotiations and lengthy discussions led to the creation of the
United Nations Framework Convention on Climate Change (UNFCCC) which main objective is
the
stabilization of greenhouse gas concentrations in the atmosphere at a level that would
prevent dangerous anthropogenic interference with the climate system. Such a level
should be achieved within a time frame sufficient to allow ecosystems to adapt naturally
to climate change, to insure that food production is not threatened, and to enable
economic development to proceed in a sustainable manner.
Thee adoption of the Kyoto Protocol on Climate Change in 2007 was an important
landmark for the global response to climate change. Its principle feature is that it sets binding
targets for industrialized countries for reducing GHG emissions by an average of 5% against
1990 levels which these countries should achieve within the commitment period of 2008-2012.
It established individual legally binding targets for them to reduce their greenhouse gas
emissions. Although the United States did not ratify the Kyoto Protocol, it entered into force on
February 16, 2005. As of April 2008, a total of 178 countries have ratified the agreement.
Last December 2007, meeting in Bali, Indonesia, the Parties to the Convention launched
a two-year negotiating process which aims to secure a new climate agreement by 2009. The
negotiations will stand on four basic approaches. 22
Mitigation. Industrialized countries are expected to cut their emissions by as much
as 40% by 2020, while developing countries are expected to pursue more climate-
friendly development strategies.
Adaptation. This important issue is now finally part of the agenda, after decades
of being disregarded and ignored in the negotiations.
Financing. A key feature of the Bali deal is the commitment from the developed
countries to operationalize financing for adaptation and mitigation to assist
developing countries.
22 Ibid.
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Technology. The fourth approach is aimed at helping poorer nations cut their
emissions through the transfer of technology.
The Role of the Philippines
The Philippines is playing a crucial role in the ongoing climate negotiations, having been
a major player at the very start while serving as the main spokesperson for the Group of 77 (G77)
and China. The Philippines was instrumental in obtaining the major agreement in Kyoto where
the country chaired key negotiations that included the debates on Land Use, Land Use Change,
and Forestry (LULUCF) and today, Philippine negotiators continue to play a vital role in the
negotiations launched in Bali for long-term cooperation and to serve as spokespersons for G77
and China. The challenge for the Philippines is how to translate this political role into concrete
benefits for the country. For that to happen, we have to be clear about what we want to do about
climate change in the Philippines.23
Progress has been made in terms of the institutional arrangements in the Philippines in
addressing climate change but the present situation requires a comprehensive strategy that will
enable the country to effectively chart a more sustainable future. The establishment of a clear
institutional mechanism by which the challenge of climate change can be addressed is necessary.
Ambiguities in the government institutions tasked to deal with climate change issues must be
eliminated and there is an imperative to establish a long-term and authoritative government
institution that will be in charge of climate change. The highest priority however is to adopt and
implement a strategic framework which should guide the Philippine response to climate
change.24
An Integrated Adaptation-Mitigation Framework
Mitigation and adaptation are not mutually exclusive, so the most effective way that these
strategies can be maximized in the context of Philippine development is to integrate mitigation
with adaptation. Together with colleagues from the Manila Observatory, I propose a framework
that builds on mitigation measures as part of adaptation, and vice-versa. Such a framework will
provide the necessary mechanisms by which policies, science, markets, capacity building and
information are able to respond to the realities of climate change and ensure that the core
objective of the UNFCCC as articulated in Article 2 are attained.25
Mitigation strategies in the Philippine context provide opportunities for enhancing
development and boosting the adaptation capacity of communities. Adaptation is as much a
development concern as mitigation. With the context of global-scale shifts in the climate system,
development can only succeed with adaptation integrated into the process.26
23 Ibid.
24 Ibid.
25 See McGray, H., A. Hammill, & R. Bradley (2007). Weathering the Storm: Options for Framing Adaptation and Development. WRI (World
Resources Institute) Report. Washington, D.C.: WRI.
26 Ibid.
15
15
In sum, the Philippines should adopt an integrated adaptation-mitigation framework that
identifies core strategies, establishes clear responsibilities between and among sectors, and
provides a clear picture of the interdependence between mitigation and adaptation efforts. In a
recent lecture, a number of us proposed a framework summarized in Figure 1.27
The framework identifies four main factors for the successful implementation of
adaptation and mitigation strategies to address the impacts of climate change on the natural
environment and the socio-economic development paths of humans. First is the development of
science-based climate policies. Second is the use of market-based mechanisms to attract the use
of cost-effective technologies and options to address climate change. Third is the importance of
research and development in order to come up with better strategies to combat the impacts of
climate change. The last factor is the importance of effective capacity development and
information awareness campaigns. The authors have identified the relevant sectors needed for
each of the factors.28
Figure 1. Proposed Integrated Adaptation-Mitigation Framework for the Philippines.
In the final analysis, an integrated Adaptation-Mitigation framework is based on
sustainable development. As defined by the Brundtland Commission in 1987, sustainable
development is development that meets the needs of the present without compromising the
27 Ibid.
28 See Villarin, et. al., supra note 20
16
16
ability of future generations to meet their own needs.29 Addressing climate change means
pursuing such an agenda that simultaneously addresses poverty while protecting the
environment. An integrated Adaptation-Mitigation framework is consistent with this because it
would allow for the identification of “no regrets” options that can serve best the long-term
interests of the country. Fortunately, many response measures to climate change move towards
achieving other important objectives, including infrastructure goals, disaster risk reduction and
mitigation objectives, food security concerns, energy development and independence, and
biodiversity conservation.30
Climate change is a complex problem that requires a multitude of solutions. At the core
of the multitude of solutions is sustainable development. As the country has made substantial
progress in institutionalizing laws and policies that aim to promote sustainable development, the
Philippine predicament and challenge lies chiefly in serious gaps and deficits in implementation.
Indeed, at the heart of the solutions to climate change is good governance. Good governance
requires designing, adapting, and implementing a coherent approach to climate change. An
integrated Adaptation-Mitigation framework is responsive to the realities of the nation, reflects
the needs of its people, and empowers all sectors of society to act. This is a modest but essential
step forward.31
IMPLEMENTING ENVIRONMENTAL LAWS AND POLICIES
One of the biggest contradictions that environmental practitioners immediately perceive
about the Philippines is that, in contrast to the sorry state of our environment and natural
resources, the country’s environmental policy framework is formidable and robust. How can our
environment be in so bad a shape when we had all the laws and policies in place to prevent that
from happening? Or do we have these laws and policies because in fact we are already in bad
shape and therefore we need them?
Our newer environmental laws are an example of this contradiction. Considered world class
and hailed as landmark legislation are the Clean Air Act (1999), the Ecological Solid Waste
Management Act (2000), and the Clean Water Act (2004). These laws have been lauded for
laying down a comprehensive framework for air quality, solid waste and water quality
management, respectively, in the place of piece-meal legislation that previously governed these
matters. They are characterized by the emphasis they place on:
(a) multi-sectoral cooperation (e.g., institutionalization of national and local multi-sectoral
governing boards);
(b) information-based policy-making (e.g., preparation national and local management
frameworks and plans based on status reports);
(c) the use of market-based instruments (e.g., emission or waste water charge system,
environmental guarantee funds) and the role of business and industry;
(d) the role of local government units (LGUs); and
29 World Commission on Environment and Development, Our Common Future (1987)
30 See Villarin, et. al., supra note 20.
31 Ibid.
17
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(e) public participation (e.g., provisions on public hearings in the preparation of plans, citizen
suits).
Indeed, these are great laws. But in my view, we will not be able to implement these laws
until we actually address the institutional and governance aspects of environmental protection.
Rethinking the Institutional Framework32
The country’s main environmental institution is the Department of Environment and
Natural Resources (DENR). It was created in 1987 by Executive Order No. 192, which
consolidated several government agencies performing environmental functions. The DENR is
primarily responsible for the conservation, management, development and proper use of the
country’s environment and natural resources, specifically forest and grazing lands, mineral
resources, and lands of the public domain, as well as the licensing and regulation of all natural
resources.
Apart from the DENR, there are other national government agencies involved in
environmental management. The major ones include the Department of Agriculture (DA) and its
Bureau of Fisheries and Aquatic Resources (BFAR), Department of Energy (DOE), Department
of Health (DOH), National Commission on Indigenous Peoples (NCIP),33 National Water
Resources Board (NWRB), National Power Corporation (NAPOCOR), and Philippine National
Oil Corporation (PNOC) (the last two, in connection with watershed areas and reservations
supporting hydroelectric power generation and geothermal fields, respectively). Moreover, even
agencies not traditionally associated with environmental functions, such as the Department of
Trade and Industry (DTI), Department of Transportation and Communication (DOTC) and
Department of Public Works and Highways (DPWH), have been given environmental
management roles under the Clean Air Act and Clean Water Act.
Given the country’s poor fiscal position, limited financial resources is a problem that the
DENR and other agencies with environmental management functions share with the rest of the
bureaucracy. To address the environmental sector’s financial needs despite this limitation,
reforms are necessary in both demand and supply sides.34
On the demand side, the government may want to consider streamlining the bureaucracy
to free up a portion of the budget devoted to personnel services, which can instead be used for
needed capital outlays and development expenditures. The government may also consider
dispensing with some functions and processes that add little value to environmental
management. An example of this is the continued conduct of environmental impact assessment
for projects whose environmental impacts are already well-known and to which routine control
32 This section is based on a study of the author commissioned by the World Bank. See Antonio La Viña, Re-thinking Philippine environmental
Institutions: Do we need to reallocate mandates, powers, and functions? (2008)
33 Very recently, the NCIP was transferred from the Department of Agrarian Reform (DAR) to the DENR, by virtue of Executive Order No. 726
issued on May 23, 2008. The implications of this transfer will be discussed below. Although such transfer has been postponed for six months and
the NCIP is now attached to the Office of the President, the intent is to still transfer NCIP to the DENR.
34 See La Viña, supra note 32.
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measures can simply be applied. In this case, an option would be to tighten the EIA screening
process.35
The government may also choose to focus on selected priority programs, or priority areas
to ensure impact, or start with tasks that can be completed despite limited resources.36 For
instance, special focus could be given to hotspots or key areas where enforcement is weakest or
most needed (e.g., Tawi-Tawi), or to areas where there are still relatively abundant resources to
save or conserve (e.g., Sierra Madre).37
On the supply side, there is a need to adopt innovative ways to generate more financial
resources. This may include: (a) increasing the use of environmental user fees; (b) encouraging
private sector investments in environmental management.
Resolving Overlaps and Moving Towards Integrated Management
The current institutional set-up is characterized by two features: fragmentation and
overlaps.38 Efforts at improving inter-agency coordination (e.g., institutionalization of PAMBs,
Airshed Governing Boards, the NSWMC and local Solid Waste Management Boards, and water
quality management boards) have been initiated and are laudable. However, these continue to
reflect sector-based planning and management. That is, following these mechanisms, in any
given locality, protected area management, air quality management and solid waste management
would remain to be treated as separate concerns. The same is true for water quality management,
coastal resource management and other concerns.
Sector-based planning is flawed in that it fails to take into consideration trade-offs in the
use of resources, and tends to give rise to inter-sectoral conflicts. Integrated, spatially-based
management has been offered as an alternative to this. Under this scheme, management units are
organized around a critical resource following ecosystem boundaries. This has already been done
in several areas, such as the Laguna Lake region and the Agno River Basin. To do this on a
national scale, comprehensive land and water use planning must be done, and the basic planning
and management units must be identified. In doing so, overlaps between planning and
management units must be avoided. The organizational structure, powers and functions of the
body that will run the planning and management unit must be carefully considered. It must have
adequate powers to ensure self-sustainability. It must be multi-sectoral and LGUs must be given
a central role in it. There must also be adequate mechanisms for public participation, and
transparency and accountability in decision-making.39
35 World Bank and Asian Development Bank, The Philippine Environmental Impact Statement System: Framework, Implementation,
Performances and Challenges (2007)
36 World Bank, Governance of Natural Resources in the Philippines: Lessons from the Past, Directions for the Future (2003)
37 See La Viña, supra note 32.
38 Ibid.
39 Ibid..
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Strengthening and Expanding the Role of Local Governments
Pursuant to the policy of decentralization, the Local Government Code of 1991 (Republic
Act No. 7160) devolved numerous functions—including environmental management functions—
to local government units (LGUs). Substantial environmental law-making powers were also
delegated to local legislative bodies.40 Furthermore, the Code requires all national agencies and
offices to conduct periodic consultations with appropriate local government units, non-
governmental and people’s organizations, and other concerned sectors of the community before
any project or program is implemented in their respective jurisdictions. No project or program
shall be implemented by government authorities unless the consultations are complied with, and
prior approval of the local legislative council concerned is obtained. Under the Code, local
governments may appoint an Environment and Natural Resources Officer.
The powers and mandates granted under the Code were further affirmed and reinforced by
various laws. These include: (a) the Small-Scale Mining Act; (b) the NIPAS Act; (c) the Mining
Act; (d) the Fisheries Code; (e) the Clean Air Act; (f) the Ecological Solid Waste Management
Act; and (g) the Clean Water Act.
Various experiences in the forestry, fisheries and solid waste management sectors have
shown that local governments can be effective environmental managers, provided enabling
conditions are present. First, they must be made to realize the value of the environment and
natural resources, and assisted in formulating their vision for environmental management in their
locality. Second, they must be given the space that would allow them a sense of ownership over
environmental initiatives. Part of this would entail clarifying the boundaries between
responsibilities of the national government and LGUs. Third, the DENR must be on hand to
render technical assistance. Fourth, networking and knowledge sharing among LGUs should be
facilitated (e.g., conduct of study tours to LGUs with good environmental programs). Fifth, the
formation of broad-based partnerships with communities and community groups and the
business sector should be encouraged.41
As to budgetary constraints, LGUs may consider tapping into their share in the utilization
of natural wealth, using private sector financing, maximizing user fees and establishing social
enterprises (e.g., eco-tourism). LGUs can also tap into local taxes and revenues generated from
natural resource use (e.g., quarry taxes) which, in the case of some localities like the province of
Pampanga, can be quite substantial in amount. Delays have been noted in the release to
LGUs’ share in natural wealth utilization. Automatic release or even direct payment of these
shares to the LGUs should be reconsidered.42
Finally, the role of LGUS should be strengthened by removing DENR control over
functions that have previously been devolved. At present, the DENR remains to have “control
and supervision” over certain functions devolved to LGUs, namely, the implementation of
community-based forestry projects, pollution control law, small-scale mining law and other laws
on the protection of the environment. Control implies that the DENR may substitute its own
40 See sections 447, 458 and 468 of the Local Government Code.
41 Ibid.
42 Ibid.
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judgment for that of the LGU, and supersede LGU actions. In these respects, DENR intervention
should be limited to supervision, only to ensure that LGU action conform to existing laws and
policies and are not in excess of jurisdiction or performed with grave abuse of discretion.
In addition, devolving other functions not previously devolved, subject to a readiness
criterion. Further devolution can be done on a phased approach by starting with LGUs that are
ready, i.e., willing to assume additional responsibilities, allocate sufficient human and financial
resources, and be accountable for ENR management.43Functions that can be devolved may
include the administration of the EIS System, large-scale mining and other matters where the
impacts and usual concerns raised are primarily local in scope.
All the former and present officials of the DENR interviewed for a World Bank study I
recently did generally supported strengthening the role of LGUs. For example, former Secretary
Elisea Gozun encourages such capacity building programs and raised the idea of finding a role
for the Leagues of Cities, Provinces, and other LGU aggrupations. Those supporting a greater
environmental role for local governments emphasized though that devolution is not possible for
all activities, particularly those that transcend local borders and have broader impact.44
Re-defining the Role of the DENR
The DENR needs to be re-defined in two important ways: (1) taking from the agency its
utilization promotion functions and (2) shifting from being “doer” to being an “enabler”.45
The apparent contradiction in the DENR’s role as protector of the environment and
promoter of NR utilization has been observed. It should be noted, as former Secretaries
Fulgencio Factoran and Victor Ramos have affirmed in interviews with this author, that this
contradiction was intended. The utilization and protection mandates were given to one
Department and to one Secretary so that there would be a balancing of development and
environmental interests. Former Secretary Factoran recalled that the Brundtland Commission
(also know as the World Commission on Environment and Development) report entitled Our
Common Future in fact provided the basis and rationale of the creation of the DENR.
Nevertheless, the tensions persist and various proposals have been put forward to remedy this
situation. These include splitting the department into two—a Department of Environment and a
Department of Natural Resources—or creating of an independent National Environmental
Protection Agency.46
It is my view that splitting the DENR into two must be avoided because this will only
result in two weaker agencies. Whatever option is taken, it should be emphasized that
environmental protection must continue to be lodged in a cabinet-level body, for several
reasons.47 First, effective enforcement requires a high degree of political commitment to
43 World Bank, Natural Resources Governance: Way Forward Action Plan (2005)
44 See La Viña, supra note 32.
45 Ibid.
46 Interviews with Atty. Fulgencio Factoran and Victor O. Ramos, Former Secretaries of Environment, Department of Environment and Natural
Resources, 26 September 2008.
47 See La Viña, supra note 32.
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environmental protection, and cabinet rank can be a symbol of this commitment. Second, other
government agencies are often direct or indirect agents of environmental harm. Cabinet status
will allows the head of the environmental protection agency to confront the other agencies from
a position of equal strength. Third, this can be a means to maintain the agency’s political
independence. Finally, cabinet level agencies may have greater success in competing for
financial resources essential to build capacity for effective enforcement.48
The enhanced role of LGUs and the movement towards integrated, spatially-based
management require a corresponding shift in the role of the DENR.49 Under this set-up, the
DENR’s main role would be as a catalyst, coordinator and convenor. As such, its tasks would
include:
formulation of national-level policies;
coordination work for the integrated, multi-sectoral planning and management
bodies;
building the capacity of, and providing technical services to, the aforementioned
bodies and LGUs;
supervision of LGU-devolved functions; and,
administration of phased devolution process.
It would continue, however, to perform regulatory functions for activities that have not
been devolved.
The Role of Citizens: Implementing the Access Principles
Principle 10 of the Rio Declaration on Environment and Development calls for public
access at the national level to environmental information; access to public participation in
decision making; and, public access to judicial and administrative proceedings in environmental
matters.50 As assessed in a recent initiative, there is much work we still need to do to implement
these access principles.51
There is a bill pending in Congress for a Freedom of Information Act. But while the
proposed law will facilitate the assertion of the people’s right to information, it will have little
impact in the ENR sector unless monitoring, data gathering and data storage capability is
improved. The DENR needs to put in place an information and communications technology
program that would integrate information scattered among different agencies. Setting up a
system should be placed on top of the DENR’s priorities.52
While the legal framework for public participation is already strong, one glaring flaw is
the absence of an effective mechanism to enforce compliance with the requirements set by law.53
48 Karen Shih, Effective Governance Structures. Unpublished (2004)
49 See La Viña, supra note 32.
50 World Resources Institute, World Resources 2002-2004: Decisions for the Earth, Balance, Voice and Power, Washington DC (2003)
51 The Access Initiative-Philippines. Independent Assessment on Access to Information on Environmental Matters. Unpublished (2007).
52 See La Viña, supra note 32.
53 The Access Initiative-Philippines, Case Studies on Public Participation in Decision-Making on Environmental Matters. Unpublished (2006).
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Deterrents and speedy remedies against non-compliance with public participation requirements
need to be put in place. This may come in the form of administrative imposition of penalties
against non-complying officials, and administrative nullification of acts which did not pass
through the required processes.
Citizens and citizens’ organizations have been successful in advocating for the passage of
progressive environmental laws. This advocacy must be carried on to exact greater
accountability in the implementation and enforcement of laws. Citizens’ organizations should
continue, if not intensify, critical engagement with government. 54
There are also existing legal tools that citizens can avail themselves of to compel the
government to perform its duties. The Clean Air Act and the Ecological Solid Waste
Management Act contain provisions allowing citizen suits in case of government’s failure to
implement their mandate. Also, the Office of the Ombudsman has created a Task Force for
Environmental Concerns to address complaints against national and local officials for non-
compliance with environmental laws. Participation of citizens in law enforcement must also be
encouraged.
While many NGOs, POs, other community groups and environmental law practitioners
have expressed interested in or are already currently engaged in environmental law enforcement,
their inability to prosecute criminal actions constitute a barrier to effective enforcement. Save for
provisions of the Clean Air Act and Ecological Solid Waste Management Act on citizen suits,
there is no legal recognition of citizens’ right to bring actions for violations of environmental
laws. Hence, in some cases where citizens have been instrumental in apprehending
environmental law violators, the latter are able to escape conviction given the scarcity or
inability of government prosecutors. Accordingly, rules of procedure allowing prosecution of
environmental law violations by environmental law organizations or practitioners need to be
crafted by the Supreme Court.55
The Role of the Judiciary and Quasi-Judicial Agencies
The judiciary influences environmental management through its power of judicial review.
Judicial review is defined as the power to settle actual controversies involving rights which are
legally demandable and enforceable, and to determine whether or not there has been a grave
abuse of discretion amounting to lack or excess of jurisdiction on the part of any branch or
instrumentality of the government. (Constitution, Article VIII, section 1) Specifically, courts:
adjudicate “conflicts and violations that arise out of the implementation or enforcement
of laws dealing with the use of natural resources and impact of human activities on public
health and the ecosystem;” 56and
decide on the just apportionment of limited resources.57
54
See La Viña, supra note 32.
55 Ibid.
56 Consuelo Ynares-Santiago, Framework for Strengthening Environmental Adjudication in the Philippines, Paper presented at Asian Justices
Forum on the Environment, Manila, July 6-7, 2007.
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In 1993, the Supreme Court designated special courts to handle violations of the Revised
Forestry Code. This was in response to the number of violations of forestry laws. (Melencio
Herrera, 2007). Very recently, on January 28, 2008, the Supreme Court designated 84 branches
of first-level courts and 31 branches of second-level courts (or a total of 115 courts) as special
Environmental Courts, with jurisdiction to try and decide violations of environmental laws.58
This was done based on an inventory and assessment of pending environmental cases. The
objective is to improve efficiency in the administration of justice, and to provide greater access
to environmental justice, by having these courts in places where environmental violations were
shown to be most frequent, and providing judges with specialized skills and knowledge relevant
to the cases prevalent in their area.
Environmental cases pending at the time of the issuance of the Court’s Administrative Order
were required to be transferred to the special courts, except those civil cases where pre-trial had
commenced and criminal cases where the accused had already been arraigned, which remained
in the branches where they were originally assigned. New environmental cases shall be assigned
(or raffled, in case of localities where more than one environmental court has been designated) to
the special courts. The special courts, however, continue to handle criminal, civil and other
cases.
Recently, a consultative workshop for the environmental courts59 was conducted by the
Philippine Judicial Academy among judges, prosecutors, environmental law enforcers and
practitioners for the purpose of gathering suggestions on improving access to environmental
justice, Recommendations gathered during the workshop include the following:
(a) Training for judges on the technical aspects of environmental cases, and developments in
environmental law and jurisprudence
(b) Promulgation of rules to govern the disposition of harassment suits filed against law
enforcers and citizens in retaliation for environmental law enforcement;
(c) Promulgation of rules exempting all environmental cases filed as citizen suits from
docket and other lawful fees, and from the injunction bond requirement, where an
application for injunction is made; and
(d) Requiring the Integrated Bar of the Philippines to have a deputized special prosecutor for
environmental cases in every chapter under the organization’s legal aid program.
The low number of cases being filed in courts despite the huge number of violations
suggests that other pillars of justice, namely, law enforcement and prosecution, need to be
strengthened as well. In the same consultative workshop referred to above, the following
recommendations intended for environmental law enforcement agencies were also gathered:
(a) Development of a guidebook for prosecutors on environmental cases;
57 Hilario Davide, The Role of Courts in Environmental Protection, PHILJA Judicial Journal. Volume 6, Issue No. 20, April-June 2004. 58 Moreover, all single sala first- and second-level courts are considered special courts for this purpose.
59 Multi-Sectoral Consultative Workshop on the Manual and Training Design for Green Courts, July 16-18, 2008, The Pearl Manila Hotel,
Manila.
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(b) Designation of environmental prosecutors, and deputation of additional special
prosecutors (from environmental law enforcement agencies and environmental law
organizations);
(c) Conduct of trainings and provision of reference materials to prosecutors on technical
matters usually involved in environmental cases
(d) Considering that lack of technical services and facilities often serve as a bar to the filing
of cases for environmental crimes, the establishment of a system for accreditation of
private individuals and laboratories, to conduct tests and/or provide certifications needed
in specific environmental cases.
We are in an exciting time in terms of the evolution of the role of the judiciary in the
protection of the environment. The creation of Green Courts is a positive development. However,
this is only an initial step as there are still a number of measures needed to make these courts
fully functional and more effective. These include: (a) an enhanced training program for
environmental court judges; and; (b) amendment of procedural and evidentiary rules that appear
to be inappropriate for environmental cases given their peculiar nature. Indeed, it might be time
for the Supreme Court to consider drafting and issuing a Rule of Court specifically for
environmental cases. According to Justice Ynares-Santiago, speaking at the Asian Justices
Forum on the Environment held here in Manila last year:
Environmental cases have features that differentiate them from ordinary civil and
criminal cases. Treating them differently does not mean giving special favors or giving
bias to environmental causes. Instead, it is recognition that the nature of environmental
cases makes it difficult for injured parties to find redress. The special rules only try
to correct the situation to balance the playing field.60
Foremost I think of the issues that the Court may want to address in drafting an
environmental rule is the challenge of executing court judgments in environmental cases. Should
the Court continue to be a passive actor and refrain from taking steps to monitor and ensure that
its decisions are implemented? Or should it be more active in making sure that the environmental
problems being dealt with is in fact addressed and solved. Should it actually retain continuing
jurisdiction over environmental cases until such time it is satisfied that the environmental
outcomes mandated by our laws were going to be achieved? Should it supervise, directly or
through the lower courts or through other bodies, the implementation of its environmental orders
such as it has done in the case of the Pandacan oil depots where it has ordered the oil
companies61 to relocate their facilities within a reasonable period of time?
14 years ago, when I had honor of delivering the Malcolm Constitutional Law Lecture
here in this same auditorium, I was skeptical of the role of the judiciary in environmental cases.62
Today, invoking my academic freedom to change my mind and informed now by the weight of
experience, it is clear to me that courts, and that includes the highest court of the land, have to be
60 See Ynares-Santiago, supra note 57.
61 GR No. 156052, Social Justice Society, et al. v. Atienza, Jr., February 13, 2008
62 Antonio G.M. La Viña, The Right to a Sound and Balanced Ecology: The Odyssey of a Constitutional Policy, Philippine Law Journal, Manila
1994.
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actively involved and engaged in environmental cases. In my view, many environmental disputes
involve issues of transcendental importance and their resolution requires the balancing of
primordial economic and political interests. If enabled and capacitated, the courts are in the best
position to do this balancing and in making sure that their judgments are in fact executed.
CONCLUSION
In this lecture, I have looked at the environmental problems posed by globalization using
mining as an illustration. I have articulated what we need to do to address the issue of climate
change. In both cases, there are solutions and strategies that we could use to achieve good
environmental and social outcomes. But these will not be realized until we reform our
institutional framework and our governance institutions. We must rethink the concept of the
DENR and evolve it into a catalyst of capacity, a convenor of institutions and stakeholders, and
devolving much more significant environmental functions and powers to local governments. I
also concluded that a new rule of court for environmental cases might be appropriate. Finally but
not the least, I have emphasized that the role of the judiciary is critical to make sure that
environmental laws and policies are actually implemented.
It will be a challenge to do all of this. Indeed, an appreciation of what lies ahead in terms
of environmental challenges is sobering. Perfect storms are ahead of us. If we do not think ahead
and think of solutions now for tomorrow’s environmental challenges, we are doomed to be
overcome and overwhelmed by them. But if we start now, if we begin preparing now to address
these challenges - whether it is the environmental outcomes of globalization, the grave and
serious impacts of climate change, or the likely increase in our governance and implementation
deficits – the generations that follow us, those who will inherit this beautiful country of ours,
will have a fair chance to meet their needs and to build a prosperous and just nation that is, in the
magnificent and grand words of the 1987 Constitution, “in accordance with the rhythm and
harmony of nature”.